Line to take

Information to which s15 of the Audit Commission Act applies will only be subject to section 21 of the FOIA if the time the request is made coincides with the time that that information is made available, and the applicant is also an “interested person”. Where an applicant has rights of access under s15 of the ACA, however, the exemptions under FOIA do not apply.

Further Information

The Audit Commission is responsible for, amongst other things, carrying out audits of the accounts of various public authorities (including local government, fire and police authorities, and the National Health Service in England and Wales) to ensure that they are prepared in accordance with relevant regulations and good accountancy practices.

Sections 14-16 of the Audit Commission Act 1998 (“ACA”) provide that other than for a health service body, there is a right to inspect, question and object to the accounts of these public authorities.

Under s15 ACA at each audit any persons interested may:

inspect the accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them, and

make copies of all or any part of the accounts and those other documents.

A “person interested” is not simply any member of the public who expresses an interest, although the case of R (on the application of HTV Ltd) v Bristol City Council [2004] considers that such a person is one who has an interest in the finances of the authority even if the contribution is indirect rather than direct. Therefore anyone who pays council tax directly for that authority would be a person interested as would a non-domestic rate payer such as a business, even though the amount it pays is decided indirectly, by central rather than local government.

By virtue of the Accounts and Audit Regulations 2003 the accounts and other documents should be made available for 20 working days on or after a date specified by the auditor and the authority must give at least 14 working days notice of where, when and how the rights can be exercised.

Information to which s15 of the ACA applies may be exempt by virtue of s21 only where:

the timing of the request coincides with the time that the information is made available for inspection; and

the applicant is an “interested person”.

In no other circumstances can a public authority claim that information to which s15 of the ACA applies is reasonably accessible to the applicant by other means.

The ACA sets out an access regime giving a statutory right for interested parties to inspect the information to which it applies at each audit. This right of access is entirely separate from the rights of access under the FOIA.

Although if requested at any time other than when it is available for inspection or copying (or at that time but by an applicant who is not also an interested person) such information may be subject to any of the exemptions provided by the FOIA. Where an applicant has rights of access under s15 of the ACA, however, the exemptions under FOIA do not apply.

The ACA has its own exemption for personal data, so this information will not be disclosed under its right of access.

Given the right of access under ACA, it may be harder for public authorities to argue that the information is exempt at other times - though it is likely that s12 may apply.